Doane v. Smith

SHINN, J.

After a verdict in favor of plaintiff against Northern Transportation Company and Andrew C. Mumler, Jr., for $32,250 for injuries sustained when plaintiff’s automobile, driven by him, ran into the rear of a trailer attached to a truck belonging to the company and operated by Mumler, the court denied defendants’ motions for a directed verdict and for judgment notwithstanding the verdict, but upon

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defendants’ motion for new trial ordered judgment notwithstanding the vérdiet in favor of the defendants, under the provisions of section 639 of the Code of Civil Procedure. Plaintiff appeals. Our sole question is to determine whether the judgment originally entered upon the verdict was sustained by the evidence, and in this determination we must weigh the evidence and all reasonable inferences deducible therefrom in the light most favorable to plaintiff.

The collision occurred on the highway leading north across the desert from Mojave about 5% miles from Mojave and around 10 o’clock at night. Defendant Mumler was driving a Diesel truck and trailer; he had installed a new oil pump at Mojave' and when he observed that the oil gauge was not showing any pressure he shut off'the motor and coasted to a stop. He then started' the motor again to observe the gauge, after which he stepped onto the running board, when plaintiff’s car struck the rear end of the trailer. The automobile caught fire, it was necessary to move the truck and trailer forward in order to shovel sand on the motor, and in order to do this the truck motor was started and the truck driven ahead some 10 feet. Later it was driven about 20 feet farther and again parked. The highway for a mile or two to the south of the collision is straight and level.

The appeal presents.the questions whether there was evidence which justified the impliéd findings that defendants were negligent, that their negligence was a proximate cause of the accident, and that plaintiff was not guilty of contributory negligence.

Section 582 of the Vehicle Code reads as follows: “Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of the highway when it is practicable'to stop', park or so leave such vehicle off such part or portion of said highway.”' The driver of the truck testified that when he stopped the truck he pulled off the highway until, the left wheels and left side of the truck were on the paved and generally used portion of the highway and the remainder of the truck was on a shoulder of the' highway to the east. A highway patrol officer who arrived shortly after the accident took certain measurements to which we shall refer, The paved highway at the point where, the truck .was